[Cite as State v. Callahan,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102900

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

REGINALD G. CALLAHAN DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-585455-A

BEFORE: Boyle, J., McCormack, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: May 12, 2016 ATTORNEYS FOR APPELLANT

Carmen P. Naso Milton A. Kramer Law Clinic 11075 East Boulevard Cleveland, Ohio 44106

Amir Gholizadeh Certified Legal Intern Milton A. Kramer Law Clinic 11075 East Boulevard Cleveland, Ohio 44106

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Edward D. Brydle Assistant County Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.:

{¶1} On May 6, 2014, defendant-appellant, Reginald Callahan (“Reginald”), shot

his nephew while inside the family home at Bessemer Avenue, Cleveland, Ohio, after an

altercation ensued between the two men. Reginald maintained that he acted in

self-defense. Following a bench trial, Reginald was convicted of felonious assault and

having a weapon while under disability and sentenced to five years in prison. Reginald

now appeals his felonious assault conviction on the grounds that the trial court “failed to

consider the Castle Doctrine before considering the elements of self-defense” and that his

conviction is against the manifest weight of the evidence. Finding no merit to the

appeal, we affirm.

I. Bench Trial

A. The Residence on Bessemer

{¶2} The state presented seven witnesses at trial, including the victim, Delorents

Bush, who was in his mid-twenties. According to Delorents, he was raised by his

grandmother in the home on Bessemer Avenue.1 In October 2012, Delorents’s aunt,

Pauletta Pope Callahan (“Pauletta”), and Pauletta’s husband, Reginald, moved into the

residence and took care of Delorents’s grandmother. Reginald was also going through

chemotherapy at that time.

The record reflects that Delorents’s mother had owned the house but quit- claimed the 1

deed to Delorents’s grandmother and Delorents’s uncle, who both took care of Delorents. {¶3} Delorents testified that he had no relationship with Reginald “other than

him being my aunt’s husband.” Delorents further explained that he had gotten in a

“little confrontation” with Reginald after Reginald and Pauletta moved into the residence.

Reginald confronted Delorents about Delorents being disrespectful by failing to

acknowledge him. Delorents testified that the altercation was “just verbal” and that his

grandmother intervened to end the confrontation. Delorents admitted that he did not

speak to Reginald because he did not like him. Delorents believed that Reginald was

taking advantage of the family.

{¶4} Shortly after the confrontation, Delorents temporarily moved in with his

cousin but ultimately returned to the Bessemer residence. In June 2013, Delorents

moved out again, but still maintained his bedroom at the Bessemer residence, had his mail

delivered there, and kept a key to the house.

{¶5} In November 2013, Delorents’s grandmother died. Following her death,

Delorents’s uncle, David Bush, was the sole titled owner of the house. David testified

that Delorents was supposed to move back and renovate the Bessemer house and that

Reginald and Pauletta were moving to Las Vegas. Delorents had obtained a $25,000

loan to remodel the house, and David was in agreement with the planned renovation,

including the presence of contractors at the house.

{¶6} Delorents testified that his aunt was “fine” with him bringing contractors to

the house as part of the future renovations and that she had even offered her input with

contractors that Delorents had brought to the house prior to May 6, 2014. As a courtesy, Delorents would text his aunt to let her know beforehand if he was going to the house.

The state presented text messages between Delorents and Pauletta corroborating

Delorents’s testimony. Specifically, on May 5, 2014 — the day before the shooting —

Delorents sent his aunt a text, stating “Stopping by tomorrow Aunty round 11 or a little

later.”

B. Discussion of Renovations with Contractors Sparks Heated Argument

{¶7} On May 6, 2014, a contractor and his secretary (“the contractors”) arrived at

the Bessemer residence to meet with Delorents. The contractors, who were hearing

impaired, entered the house with Delorents. According to Delorents, Pauletta opened

the front door and informed him “in a hush tone” that she did not want “anymore

contractors” at the house after today. Delorents and the contractors then proceeded

inside the house and sat at the kitchen table to discuss the plans.

{¶8} According to the contractors, after approximately five minutes into the

meeting, Pauletta interrupted the meeting, arguing with Delorents. This argument

prompted Reginald to come downstairs, resulting in Delorents engaging in a heated

exchange with Reginald, both in the kitchen and then on the staircase. The secretary

testified that Reginald, who was very angry, did not appear to be afraid of Delorents.

{¶9} According to Delorents, Reginald interrupted the meeting, confronted the

contractor, and indicated that “[n]o work is starting until we leave.” Delorents

responded by saying, “Auntie, get your husband.” Delorents testified that Pauletta did

nothing and then Reginald ran upstairs. Delorents then followed Reginald upstairs, reaching the first landing of the two staircases when Reginald responded, “If you come up

here, I’ll shoot you.” Delorents then returned downstairs and the contractors left.

C. Delorents’s Version of the Events

{¶10} After the contractor and secretary left, Reginald returned downstairs, where

he and Delorents continued to argue. At some point, Reginald pulled out a gun from his

back pocket and Delorents ultimately called his uncle David — the owner of the house —

after learning that Reginald called the police. David’s cell phone recorded a message

from Delorents, which the state played for the court. At trial, Delorents admitted to

saying, “Reggie just pulled something out on me. I am about to smack the fuck out of

him.”

{¶11} Delorents explained that he was very angry and frustrated, especially

because his aunt was telling him that “You’re wrong, you’re wrong,” yet “her husband is

standing behind her with a gun at his side threatening to shoot me.” Delorents further

testified that Reginald kept “egging him on,” threatening to change the locks and claiming

that he “pays all the bills.”

{¶12} Delorents further explained that Reginald came in the threshold area

between the living room and kitchen; Delorents was in the living room facing the kitchen

and Reginald stood in the kitchen; Pauletta was between both of them facing Delorents.

While Pauletta was arguing with Delorents, Reginald raised the gun up, prompting

Delorents to grab Pauletta by her shoulders and move her to the side. Delorents testified

that his aunt weighs “maybe 120 pounds” and that he never threw her across the room. According to Delorents, his aunt, who was right by a chair, went over the arm of the

chair, jumped back, and then turned toward Reginald for the first time. At this point,

Reginald reached around Pauletta and shot Delorents.

{¶13} Pauletta called 911 for assistance. In the 911 call played before the court,

Reginald is heard in the background saying, “If you wouldn’t have been * * * [inaudible]

* * *, you wouldn’t have been shot.” Reginald also remarked on Delorents’s attitude.

{¶14} According to Delorents, while he laid on the ground in pain, Reginald

taunted him with “trash talk,” saying such remarks as: “You a whole-ass nigga”; and

“Now who a bitch?” Believing that Reginald was going to shoot him again, Delorents

crawled from the living room to the edge of the curb. Delorents further testified that he

had removed his sweater when he first entered the house with the contractors.

{¶15} On cross-examination, Delorents acknowledged that his aunt asked him to

leave the house at least three times after the arguments ensued. Delorents testified that

he did not leave because he was waiting for the police to arrive. Delorents further

acknowledged that in the background of the 911 call made by Reginald, Delorents can be

heard speaking to his aunt, saying “I love you, but I will fuck him up.”

D. Reginald’s Statement to the Police

{¶16} Reginald was arrested on the scene where he admitted to shooting

Delorents. Reginald also agreed to provide a statement to the police after being arrested,

which was recorded and presented at trial. {¶17} Reginald first described his relationship to Delorents, stating that Delorents

“doesn’t care about me.” He explained that the incident started with Delorents

“mouthing off.” He stated that he had no intention of “going as far” as he did but

explained that Delorents “really wanted to whip my ass.”

{¶18} Reginald detailed the incident, stating that he went back up and downstairs

approximately five times before shooting Delorents. He stated that prior to using the

gun, he grabbed a knife but then put it down. Reginald admitted buying the gun a

couple weeks earlier from someone on the street. He further explained that, although he

brought the gun downstairs, he never intended to use it; he simply wanted to scare

Delorents. Reginald stated that during his final trip downstairs, he placed the gun in the

kitchen drawer but grabbed it when Delorents “tossed” Pauletta. Reginald then

described a situation where both “fear overcame him” and Delorents “pressed up against

the pistol.” According to Reginald, Delorents “walked into the gun” and Reginald

reacted, firing the weapon. Reginald expressed remorse but claimed that he was afraid

for his life and his wife’s life. He further acknowledged regret in having the “damn gun

in the first place.”

E. Pauletta’s Version of the Events

{¶19} Reginald presented Pauletta’s testimony in support of his claim of

self-defense. Although Pauletta’s account of the confrontation between Delorents and

Reginald differed in certain aspects, she also corroborated certain key facts, such that Delorents had authority to enter the home on May 6 and that Reginald retrieved a gun at

some point during the verbal altercation.

{¶20} But unlike Delorents’s testimony — casting Reginald as erratic and the

primary agitator, Pauletta painted a drastically different picture. According to Pauletta,

the first argument erupted when she told Delorents that any renovations to the house had

to wait until after they moved out, including any work on the roof. Pauletta based this

decision on the fact that Reginald gestured “no” to any work starting at the home.

Delorents became very irate, stating that “I’m tired of this motherfucker always getting in

the way, always blocking something.”

{¶21} At this point, Reginald returned down the stairs to “maybe like the third

step.” Delorents yelled at Reginald to return upstairs and then “ran up” after him.

According to Pauletta, she has never seen Delorents so angry. Pauletta followed

Delorents up the stairs, pulling on him to come back down. At this point, Reginald was

standing in the doorway of his bedroom. Delorents returned downstairs with Pauletta,

where Delorents called David, saying “that motherfucker pulled a gun, I am going to fuck

him up.”

{¶22} When Delorents called David, Reginald simultaneously called 911 while

sitting on the stairs.

{¶23} Pauletta testified that Delorents was very upset and crying. Pauletta further

explained that she told Delorents to leave many times and questioned why he was treating

his family this way. Delorents responded that “he hates that motherfucker.” Pauletta testified that she told Delorents that he was wrong and pushed him toward the living room

and front door from the kitchen area. Reginald returned to the kitchen and ultimately

grabbed a knife while Pauletta and Delorents argued. According to Pauletta, this did not

“dissuade” Delorents — it only enraged him further. Pauletta testified that Delorents

then took off his sweater and headed toward Reginald. Pauletta further explained that

she was between Delorents and Reginald so Delorents threw her to the ground, rushing

toward Reginald. At this point, Reginald shot Delorents at close range in the upper left

abdomen.

II. Presumption of Self-Defense Under Castle Doctrine

{¶24} In his first assignment of error, Reginald argues that the “trial court erred in

failing to consider the Castle Doctrine before considering the elements of self-defense.”

{¶25} In Ohio, self-defense is an affirmative defense that a defendant must prove

by a preponderance of the evidence. R.C. 2901.05(A); State v. Willford,

,

(1990). To succeed on a claim of self-defense, a defendant

must establish the following three elements: (1) no fault in creating the situation giving

rise to the affray; (2) a bona fide belief that he or she was in imminent danger of death or

great bodily harm and that the only means of escape from such danger was in the use of

force; and (3) no violation of any duty to retreat or avoid the danger. State v. Barnes,

,

(2002).

{¶26} R.C. 2901.09(B), also known as the “Castle Doctrine,” creates an exception

to the general duty to retreat (the third element), and it states in pertinent part: a person who lawfully is in that person’s residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person’s residence.

{¶27} R.C. 2901.05(B)(1) further explains that, subject to two exceptions

contained in R.C. 2901.05(B)(2), a defendant is entitled to a presumption of self-defense

“if the person against whom the defensive force is used is in the process of unlawfully

and without privilege to do so entering, or has unlawfully and without privilege to do so

entered, the residence * * *.” Under R.C. 2901.05(B)(2)(a), however, this presumption

“does not apply if the person against whom the defensive force is used has a right to be

in, or is a lawful resident of, the residence * * *.” Further, “[t]he presumption set forth

in * * * [R.C. 2901.05(B)(1)] is a rebuttable presumption and may be rebutted by a

preponderance of the evidence.” R.C. 2901.05(C).

{¶28} Reginald argues that he was entitled to a presumption that he acted in

self-defense because the shooting occurred in his residence after Delorents had been

instructed to leave. Relying on the trial court’s statements in announcing the verdict,

Reginald contends that the trial court failed to even consider the Castle Doctrine and that

the failure to properly apply the Castle Doctrine constitutes reversible error. Reginald,

however, misconstrues the trial court’s statement and the circumstances entitling a

defendant to the presumption of self-defense.

{¶29} The presumption of self-defense contained in R.C. 2901.05(B)(1) does not

apply because Delorents did not “unlawfully and without privilege” enter Reginald and

Pauletta’s residence. By all the witnesses’ accounts, including Pauletta’s, Delorents entered the home with the express privilege to do so. Reginald’s argument, however,

does not focus on Delorents’s entry; instead, he argues that once Pauletta told Delorents

to leave, he became a trespasser and thus was unlawfully in the house. He likens the

situation to that in which an invitee becomes a trespasser for purposes of aggravated

burglary. See State v. Holloway,

,

(1989), citing

State v. Stefan,

,

(1987).

{¶30} But as recently recognized by the First Appellate District, “the trespassing

statute speaks to a defendant entering or remaining without privilege.” State v. Everett,

1st Dist. Hamilton No. C-140275,

, citing R.C. 2911.21(A). “In

contrast, R.C. 2901.05(B)(1) looks to the status of the person against whom force is used

when [he or] she entered the building.”

Ohio courts have consistently applied the

statute this way, recognizing that the presumption contained in R.C. 2901.05(B)(1)

“clearly contemplates a scenario of a home/car invasion — i.e., the person against whom

the defensive force is used is in the process of unlawfully and without privilege entering

(or has entered) the defendant’s residence or vehicle.” State v. Nye, 3d Dist. Seneca No.

13-13-05,

; see also State v. Hogg, 10th Dist. Franklin No.

11AP-50,

, ¶ 36. Thus, because Delorents entered the home lawfully,

the R.C. 2901.05(B)(1) presumption does not apply.

{¶31} But even assuming arguendo that the presumption of self-defense applied

and that the burden had been shifted to the prosecution to prove Reginald did not act in

self-defense, the record shows that the prosecution presented evidence to adequately rebut the presumption by a preponderance of the evidence. See R.C. 2901.05(B)(3). Indeed,

the state’s evidence demonstrated that Reginald’s conduct in the affray did not meet all

three of the elements necessary for self-defense.

{¶32} First, turning to the first element of a claim for self-defense, the state’s

evidence established that Reginald, who did not have a favorable relationship with

Delorents, caused the situation giving rise to the affray. According to the state’s

witnesses, Reginald was very upset about Delorents moving forward with any renovations

while Reginald and Pauletta still lived in the house and erratically engaged in a verbal

argument with Delorents. Despite the profanities being exchanged between the parties,

Reginald clearly escalated the situation by retrieving and then brandishing a gun,

threatening to shoot Delorents. The state further established that, after Reginald

retrieved the gun, he continued to agitate Delorents. According to Delorents, as soon as

one argument ended, Reginald started another. Moreover, based on Reginald’s own

admission, the entire situation could have been avoided if he never had brandished the

gun in the first place.

{¶33} Second, the state also demonstrated that Reginald did not have reasonable

grounds to believe he was in imminent danger of death or great bodily harm and that his

only reasonable response was the use of deadly force. Unlike Reginald, Delorents was

unarmed. Further, the state’s evidence, including Reginald’s own statements during the

911 calls, demonstrated that Reginald despised Delorents — not that he feared him. As for Delorents’s refusal to leave the house, he knew that the police were on their way to

the home and was waiting to meet with them.

{¶34} Accordingly, we find that the trial court properly recognized that the Castle

Doctrine presumption of self-defense under R.C. 2901.05(B)(1) did not apply in this case

and that the record did not support a claim of self-defense. The first assignment of error

is overruled.

III. Manifest Weight of the Evidence

{¶35} In his second assignment of error, Reginald argues that his felonious assault

conviction is against the manifest weight of the evidence because the evidence

overwhelmingly demonstrates that he acted in self-defense and defense of his wife. We

disagree.

{¶36} A challenge to the manifest weight of the evidence attacks the credibility of

the evidence presented. State v. Thompkins,

,

(1997). In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as a “thirteenth juror.”

In doing so, it must

review the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses and determine “whether in resolving conflicts in the evidence, the

jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.”

quoting State v. Martin,

,

(1st Dist. 1983). Reversing a conviction as being

against the manifest weight of the evidence and ordering a new trial should be reserved for only the “exceptional case in which the evidence weighs heavily against the

conviction.”

{¶37} Reginald argues that he proved the affirmative defense of self-defense by a

preponderance of the evidence through Pauletta’s testimony. He contends that

Delorents’s account of the incident was simply not credible and should have been

disregarded. The trier of fact, however, believed Delorents’s testimony, as it was free to

do. “Although an appellate court must act as a ‘thirteenth juror’ when considering

whether the manifest weight of the evidence requires reversal, it must give great

deference to the factfinder’s determination of the witnesses’ credibility.” State v.

Fisher, 8th Dist. Cuyahoga No. 101365,

, ¶ 43.

{¶38} Moreover, aside from Pauletta’s obvious bias in favor of her husband, we

cannot agree that her testimony established the elements of self-defense even if believed.

As discussed above, the record overwhelmingly establishes that Reginald caused the

situation giving rise to the affray. The verbal altercation escalated into a life-threatening

situation only after Reginald retrieved and then brandished his gun. Further, based on

Reginald’s own statements recorded during the 911 calls as well as own statement to the

police, the trier of fact reasonably concluded that Reginald did not have reasonable

grounds to believe he (or his wife) was in imminent danger of death or great bodily harm

that warranted the use of deadly force. And although Delorents was clearly very

frustrated and angry, his conduct amounted to nothing more than verbal threats. {¶39} This is not the exceptional case where the trier of fact lost its way. The

second assignment of error is overruled.

{¶40} Judgment affirmed.

It is ordered that appellee recover from appellant the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY J. BOYLE, JUDGE

TIM McCORMACK, P.J., and PATRICIA ANN BLACKMON, J., CONCUR